Opinion
2017–11145 Index No. 34360/12
11-18-2020
In the Matter of Warren MCDOWELL, appellant, v. BLUE POINT FIRE DEPARTMENT, respondent.
Silberling & Silberling, Hauppauge, N.Y. (Stephen P. Silberling of counsel), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent.
Silberling & Silberling, Hauppauge, N.Y. (Stephen P. Silberling of counsel), for appellant.
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia and Glenn A. Kaminska of counsel), for respondent.
REINALDO E. RIVERA, J.P., MARK C. DILLON, JOSEPH J. MALTESE, COLLEEN D. DUFFY, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 78 to review a determination of the Blue Point Fire Department Board of Wardens dated January 30, 2013, expelling the petitioner from the Blue Point Fire Department, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (Peter H. Mayer, J.), dated August 8, 2017. The judgment denied the petition and dismissed the proceeding.
ORDERED that the judgment is reversed, on the law, with costs, the petition is granted to the extent that the determination of the Blue Point Fire Department Board of Wardens expelling the petitioner from the Blue Point Fire Department is annulled, the petition is otherwise denied, the proceeding is otherwise dismissed, and the matter is remitted to the Blue Point Fire Department for a hearing and a new determination thereafter in accordance herewith.
The petitioner, a volunteer firefighter, commenced this proceeding to review a determination of the Blue Point Fire Department Board of Wardens (hereinafter the Board of Wardens), dated January 30, 2013. The Board of Wardens found that the petitioner had violated the bylaws of the Blue Point Fire Department (hereinafter the department) and the Firefighter's Oath, and expelled him from the department. In a judgment dated August 8, 2017, the Supreme Court denied the petition and dismissed the proceeding. The petitioner appeals.
"Pursuant to General Municipal Law § 209–l, volunteer firefighters cannot be removed from office or membership for incompetence or misconduct, except for absenteeism at fires or meetings, unless they are afforded a hearing" (Matter of Pawlowski v. Big Tree Volunteer Firemen's Co., Inc. , 12 A.D.3d 1030, 1031, 784 N.Y.S.2d 785 ; see Matter of McEvoy v. Oyster Bay Fire Co. No. 1 , 117 A.D.3d 953, 954, 986 N.Y.S.2d 187 ). However, "[t]hat section, by its own terms, does not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company" ( Matter of Ferrara v. Magee Volunteer Fire Dept. , 191 A.D.2d 967, 968, 594 N.Y.S.2d 506 [internal quotation marks omitted]; see Matter of Armstrong v. Centerville Fire Co. , 83 N.Y.2d 937, 939, 615 N.Y.S.2d 314, 638 N.E.2d 959 ).
Here, after a meeting at which the petitioner appeared, the Board of Wardens found that he had violated Article V, Section 1(C), of the bylaws, by donating department property in contravention of an order from the chief of the department. That provision of the bylaws authorized the chief of the department to suspend members of the department for insubordination, refusal to follow orders, and for conduct unbecoming or detrimental to the department, and required the Board of Wardens to review such suspensions. The bylaws did not empower the Board of Wardens to dismiss a member based on a violation of Article V, Section 1(C). Thus, a hearing pursuant to General Municipal Law § 209–l was required (see Matter of Pawlowski v. Big Tree Volunteer Firemen's Co., Inc. , 12 A.D.3d at 1031, 784 N.Y.S.2d 785 ; Matter of Lotten v. Board of Fire Commrs. of Terryville Fire Dist. , 262 A.D.2d 563, 563–564, 692 N.Y.S.2d 437 ; compare Leahy v. Jordan , 207 A.D.2d 385, 386, 615 N.Y.S.2d 706 with Matter of Ferrara v. Magee Volunteer Fire Dept. , 191 A.D.2d at 968, 594 N.Y.S.2d 506 ). Since the petitioner was entitled to a hearing upon due notice and upon stated charges under General Municipal Law § 209–l, but was not afforded one, we annul the determination and remit the matter to the Blue Point Fire Department for a hearing and a new determination thereafter (see Matter of Richards v. Bd. of Fire Commrs. of Brentwood Fire Dist. , 117 A.D.3d 836, 837, 985 N.Y.S.2d 718 ).
Accordingly, we reverse the judgment, annul the determination, and remit the matter to the Blue Point Fire Department for a hearing on due notice by an impartial finder of fact and a new determination thereafter.
In light of our determination, we need not reach the petitioner's remaining contentions.
RIVERA, J.P., DILLON, MALTESE and DUFFY, JJ., concur.